Blaszkowski et al v. Mars Inc. et al

Filing 610

MOTION for Reconsideration re 605 Order on Motion to Compel,, by All Plaintiffs. (Attachments: # 1 Declaration of Edgar R. Nield)(MacIvor, Catherine)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 07-21221 CIV ALTONAGA/Brown RENEE BLASZKOWSKI, et al., individually and on behalf of others similarly situated, Plaintiffs/Class Representatives, vs. MARS INC., et al. Defendants. ______________________________________________/ DECLARATION OF EDGAR R. NIELD FILED IN SUPPORT OF PLAINTIFFS' MOTION FOR RECONSIDERATION REGARDING DEFENDANT'S MOTIONS TO COMPEL PLAINTIFFS TO PROVIDE ADDITIONAL REPSOSNES TO WRITTEN DISCOVERY 1. I am an attorney licensed to practice in the states of California and

Colorado and am admitted to practice before the Federal District Courts of Southern and Central California and the Tenth Circuit District Court in Colorado. I am co-counsel for Plaintiff's Jo-Ann Murphy, Cindy Tregoe and Patrica Davis, class action representatives in the above captioned matter. I know the following to be true based upon my own personal knowledge or belief and if called upon to do so I could and would competently testify to the following under oath in a court of law. 2. In mid-October 2008 I received written discovery, including

Interrogatories, Requests for Admissions and Requests to Produce Documents from defendant Natura Pet Food Products Inc. directed to Plaintiffs Jo-Ann Murphy, Cindy Tregoe and Patrica Davis. Responses were prepared to that discovery by my office and provided to the defendant's in a timely fashion subsequent to an agreed upon extension. 3. Thereafter Defendant asserted numerous objections to the Plaintiffs'

responses and demanded that the responses be modified and supplemented to address those objections. After meet and confer efforts failed to resolve defendant's objections the Defendants filed multiple Motions to Compel to Plaintiffs to provide further responses. On behalf of the Plaintiffs' we decided that it was appropriate to file

Oppositions thereto. 4. When I received those Motions via email from the Defendant I calculated

and calendared the Opposition due dates to assure that I would have them prepared and filed on a timely basis. I noted that the electronic notice of the filing of the motions, sent out via the CM/ECF system (a true and correct copies of which are attached to this declaration as Exhibit "A"), set out a response due date of February 2, 2009. However, we did not rely on that unofficial indicator as to when the Oppositions would need to be filed. Based upon our calculations, I believed that the Oppositions would be due January 28 to February 2, 2009, in conformance with Federal District Court, Southern District of Florida Local Rule 7.1 (C) (1). I also conferred with local Miami co-counsel who confirmed the same dates. 5. I was in the process of preparing the Plaintiff's Oppositions to the

Dependant's Motions when I was surprised to receive on January 26, 2009, two days before I believed the Oppositions to be due, the Court's ruling on the Motion to Compel concerning the responses Plaintiff Patrica Davis had previously provided Defendants to their First set of Requests for Admission, which must have been decided as unopposed because we had not yet filed plaintiffs' Oppositions to Defendant's Motions. Initially I thought that there had to be some error by the Court. The next day, January 27, 2009 and was even more surprised when I received the Court's ruling on the other Motions to Compel filed by the Defendant's, which again must have been decided by the Court as unopposed. 6. At that point I again confirmed what I believed to be the Opposition due

dates January 28 to February 2, 2009 and again reconfirmed those dates with Miami co2

counsel who agreed. 7. Still believing the Court had made some error, I contacted by Judge

Brown's law clerk by telephone and inquired as to why the Court was deciding the Defendant's motions before the Plaintiffs' had been able to file their Oppositions. After some research the law clerk indicated that Judge Altonaga had issued a Scheduling Order on April 25, 2008 which, among other things, had shortened the time to respond to discovery motions to five days. I was unaware of this at the time I had calculated the due dates of Plaintiffs' Oppositions. She also indicated that this was a common error where these types of orders were concerned since it changed the local rule provisions as to response dates to motions. She and recommended that we file a Motion for Reconsideration of the Judge's rulings relating to the Defendant's Motions, to allow the Plaintiff's the opportunity to file and the Court consider the plaintiffs' Oppositions to those Motions. Based thereon and need to assure that the Defendant's Motions were heard on the merits, we decided to file this Motion for Reconsideration seeking relief from the error we have made in miscalculating the Opposition due dates. 8. The error that occurred in calculating the Opposition due dates was an

innocent one made in good faith. It was the result of a mistake, inadvertence and/or excusable neglect. There was no intent to delay or obstruct in any way the process of having the Defendants Motions resolved in an expedient fashion. It never occurred to me that a scheduling Order had been issued shortening the response time for discovery motions. Had I been aware of this order, I could and would have had the Oppositions filed with the Court in a timely manner. The only reason they were not was because of my mistaken belief that they were not due until alt least January 28, 2009, which lead me to schedule my work load accordingly. I believe this can probably be determined by

reviewing the nature of the Oppositions. Plaintiffs have essentially acceded all of the objections the Defendant's raised in its motions with the exception of the request that Plaintiff Davis produce her personal computer inspection for inspection by the 3

Defendant, which has been opposed on justifiable grounds. 8. Attached to this declaration are true and correct copies of the Plaintiff's

Oppositions to the plaintiffs Motions to Compel additional discovery responses. They are as follows: Exhibit "B" ­ Plaintiff's Opposition to Defendant Natura Pet Food Products, Ink's Motion to Compel Responses by Jo-Ann Murphy and Cindy Tregoe to Nature's Second Set of Interrogatories: and Patrica Davis to Nature's Third Set of Interrogatories.

Exhibit "C" - Plaintiff's Opposition to Defendant Natura Pet Food Products, Inc.s Motion to Compel Responses by Jo-Ann Murphy and Cindy Tregoe to Natura's Third Set of Interrogatories: and Patrica Davis to Natura's Fourth Set of Interrogatories.

Exhibit "D" -

Plaintiff's Opposition to Defendant Natura Pet Food

Products, Inc.s Motion Regarding the Sufficiency of Answers and Objections to Defendant Natura Pet Products, Inc.'s First Set of Requests for Admission to Plaintiff Patricia Davis.

Exhibit "E" -

Plaintiff's Opposition to Defendant Natura Pet Food

Products, Inc.s Motion to Compel Responses to Defendant Natura Pet Food Products, Inc.s First Set of Requests for Production of Documents to Plaintiff Patrica Davis. 9. By vacating the Court's orders regarding the Defendant's multiple

Motions to Compel to allow the filing and consideration of the Plaintiffs' Oppositions thereto will only delay the resolution of these motions few days and will not significantly impact progress on these discovery issues or this lawsuit in general. There will be no 4

undue prejudice or delay to the Defendant's in their prosecutions of these motions or their defenses to this action. Doing so will only assure that the Defendants Motions will be decided on their merits, not as unopposed or ignored. 10. However, to deny this request would create a significant prejudice to the

Plaintiff's particularly as to issues such as Defendant's demand that Plaintiff Patrica Davis Produce her personal computer given the board nature of the request, the attorney client and privacy issues and the burdensome and oppressive nature of the request. These types of issues need to be determined on the merits, and not because of an excusable error on the part of counsel. It is based upon all of the above, and the argument set out in the accompanying Motion, that t